The breach of contract is unjustified if the anti-Covid 19 government measures are no longer effective
With a very recent order issued on 5 May, the Court of Verona rejected the requests of an entrepreneur, who claimed that the breach of contract with the counterpart was justified by the suspension of his activity in compliance with the anti-covid measures, issued to the Government during the state of emergency.
The Court, accepting the exceptions of the creditor, declared that the breach of contract could not be justified in compliance with the anti-Covid measures aimed at contrasting the state of emergency caused by the pandemic, as the mandatory relationship had been carried out in a period in which these rules were no longer effective.
The case in point
In the present case, an entrepreneur had opposed the decree by which he was ordered to pay the counterpart a certain amount by way of compensation for the execution of waste transport and disposal works at different construction sites, commissioned by the same entrepreneur.
In the notice of opposition, the debtor had declared that the non-payment of the requested sum was justified by the suspension of his business activity, following the enactment of government regulations aimed at countering the state of emergency caused by the pandemic.
The debtor, in particular, referred to art. 3, paragraph 6 bis of the italian D.L. n. 6/2020, converted with amendments into law n. 13/2020, whose provision provides that “Compliance with the containment measures referred to in this decree is always assessed for the purpose of excluding, pursuant to and for the purposes of articles 1218 and 1223 of the Italian Civil Code, the liability of the debtor, also in relation to ‘application of any forfeiture or penalties connected to delayed or omitted fulfillments“.
The reasons of the Court
However, the Court, accepting the creditor’s objections, stated:
- firstly, that the services for which the remuneration was requested had been rendered in a period (between November 2020 and February 2021) following the one in which many entrepreneurial activities had been suspended by the emergency measures; when by now the working activities of the sector in which the debtor operated had already been resumed and the limitations due to the pandemic considerably weakened.
- Secondly, that the entrepreneur had not provided any evidence aimed at proving that his non-fulfillment depended on the suspension of the activity, in compliance with government measures by the Government.
In fact, in order to exclude his responsibility, he would have had to provide proof of the etiological link between his non-fulfillment (the non-payment of the fees to the creditor) and the cause that made the due service impossible (i.e. compliance with the government measure).